The U.S. Supreme Court has given employers some welcome news. In the recent case of NLRB v. Kentucky River Community Care, Inc. (121 S.Ct. 1861, 2001), the court directed the National Labor Relations Board (NLRB) to redefine its test for determining who is a supervisor under the National Labor Relations Act (NLRA) in certain cases. This may make it easier for employers to prove that certain employees are supervisorsand therefore ineligible to vote in union elections.

Although the Kentucky River decision may appear to be fairly limitedapplying only to certain types of nurses, known as charge nursesit actually has significant and far-reaching implications for all professional and technical employees who direct the work of less- skilled employees.

The decision also may prompt the NLRB to fashion a clearer standard for determining supervisory status in industries that employ professional or technical employeessuch as charge nurses, dispatchers, coordinators or others who regularly use professional or technical expertise and judgment to direct less-skilled subordinates. (History, however, suggests that the NLRB may not bend over backwards to make things easy for employers.)

At a minimum, the Kentucky River decision should serve as a wake-up call, prompting employers to identify workers whose supervisory status may be questioned by the NLRB. Such employers would be well advised to address this issue before becoming involved in an NLRB proceeding or other litigation where supervisory status could be legally significant.

The Debate About Charge Nurses

The NLRA defines supervisors as individuals who:

Have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employeesin the interest of the employer.

Exercise independent judgment to direct other employees, adjust their grievances or recommend such action.

Because charge nurses generally assign and direct the work of other employees, most health care institutions have treated these individuals as supervisors. In fact, most health care employers consider charge nurses an integral part of their management team, not unlike employers of professional and technical employees in a number of other industries.

However, for years, the NLRB denied supervisory status to charge nurses, ruling that these nurses acted primarily in the interest of the patientnot in the interest of the employerwhen directing subordinates.

In August 1999, the NLRB Office of the General Counsel issued a guideline memorandum that provided a comprehensive checklist for determining whether charge nurses are supervisors under the NLRA. The guideline was slanted toward a finding of non-supervisory status. The NLRBs approach led to a number of federal appellate court decisions, with mixed results, producing a split among the courts.

As a result, the NLRB pursued an appeal in the Kentucky River case to the Supreme Court. In that case, the NLRB counted six charge nurses in the employers bargaining uniteven though the employer considered the nurses to be supervisors and therefore ineligible to participate in the union vote.

The NLRB held, as it had in most recent cases, that the charge nurses do not use independent judgment when they exercise ordinary professional or technical judgment in directing less-skilled employees to deliver services.

In a May decision that is relatively favorable to employers, the Supreme Court ruled that the NLRBs checklist for determining supervisory status of charge nurses is unlawful. As a result, the court ordered the NLRB to revisit its approach to evaluating the supervisory status of charge nurses and others who use professional or technical judgments in directing less- skilled workers.

Writing for the Supreme Court, Associate Justice Antonin Scalia reasoned that if the board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate supervisors from the act. What supervisory judgment worth exercising, one must wonder, does not rest on professional or technical skill or experience?

In essence, the court stated that it remains within the NLRBs discretion to determine the amount of independent judgment necessary to satisfy the definition of a supervisor, but that the NLRB erred by excluding a particular kind of judgment, i.e., ordinary professional or technical judgment in directing less-skilled employees to deliver services.

However, the court did agree with the NLRBs statement that the party claiming that an individual is a supervisor bears the burden of proving that status. This is most significant in unfair labor practice cases where employers will be found liable for the conduct of those determined to be supervisors. Previously, many employers had arguedand many appellate courts had agreedthat the NLRB bore the burden of proving or disproving supervisory status when it was material to the case at hand.

Not the End

The issue of charge nurse supervisory status is by no means dead as a result of the Kentucky River decision. Out of necessity, subsequent NLRB decisions will be made on a case-by-case basis.

Further, it is highly unlikely that the NLRB, especially at the regional level, where cases are decided, will reverse itself and now find charge nurses and similar supervisors in other industries to routinely qualify as supervisors under the act. (In the past, when the NLRB has been reversed by the Supreme Court, it has attempted to find creative ways around the courts directives.)

In fact, the Supreme Court left the door open for the NLRB to pursue yet another route that would allow it to determine that charge nurses are not supervisors. The Kentucky River opinion expressly recognized that the term independent judgment as used in the act is ambiguous, particularly with respect to the degree of discretion required for supervisory status. The court also signaled that it is within the NLRBs purview to determine the level of discretion required.

The court also pointed out that, as reflected in the boards phrase in accordance with employer-specified standards, the degree of judgment that might ordinarily be required may be reduced below the statutory threshold by an employers detailed orders and regulations. For example, the NLRB could find that charge nurses do not exercise independent judgment because they are required to follow strict guidelines that limit their flexibility when making certain types of decisions.

In short, the court left the door open for the NLRB to continue to make life difficult for employers. Yet, the high courts ruling will ease employers burdens in other ways.

For example, at least one organization has viewed Kentucky River as a death knell in its efforts to organize professional employees. Shortly after the decision, the Physicians for Responsible Negotiation (PRN), the arm of the American Medical Association created to collectively bargain on behalf of physicians, announced it would no longer seek to organize new units of private sector physicians. The PRN reasoned that, in most cases, the employee-physicians it was seeking to represent responsibly directed other employees to an extent equal to or greater than the nurses in the Kentucky River case.

Other labor organizations targeting professional and technical employees who direct the work of other employees can expect to be similarly affected.

In fact, just a few days after the Kentucky River decision, the 5th Circuit Court of Appeals, in Entergy Gulf States, Inc. v. NLRB, (253 F.3d 203, 5th Cir., 2001), refused to enforce an NLRB decision that found the companys operations coordinators (OCs) were not supervisors. The decision pointed out that the board attempted to draw an analogy between the OCs duties and those of charge nurses, an argument that is no longer viable since the Kentucky River decision.

That ruling is important because the NLRB frequently has applied the rationale for determining the supervisory status of charge nurses to similarly situated front line supervisors in other industries.

In the case of Mississippi Power & Light Co., (328 NLRB 965,1999), for example, the NLRB found that the companys system and distribution dispatchers were not supervisors. The NLRB expressly compared the companys dispatchers to charge nurses and relied upon an earlier decision in NLRB v. Audubon Health Care Center, (170 F.3d 662, 7th Cir., 1999), involving charge nurses.

According to the NLRB in the Mississippi Power case, the basic principle of the charge nurse cases has been applied in other industries to positions such as lead operators, field engineers, docking pilots and others. The NLRB reasoned that, in the modern workplace, quasi-professional, quasi-overseer employees are not supervisors under the act.

In the Meantime

Employers can expect many future NLRB cases involving supervisory status. Should it be so inclined, the NLRB may attempt to achieve the same result as in the past by construing supervisory criteria in a manner that results in supervisory status being denied.

In the meantime, employers that have front-line supervisory positions that are similar to charge nurses should take heed. To increase the odds that the NLRB would agree that these employees truly are supervisors, consider following these recommendations:

Become familiar with the Kentucky River decision and the NLRB guideline.

Audit how your employees supervisory status stacks up.

Make sure that job descriptions accurately reflect all supervisory responsibilities.

Give the person(s) in question as much authority as possible in the 12 supervisory attributes enumerated in Section 2(11) of the NLRA.

Ensure that these individuals have the independence to act in as many matters affecting employees as feasible; avoid the temptation to limit authority by strict adherence to employer-specified standards, such as staffing guidelines, overtime procedures or other protocols that reduce the need for the exercise of independent judgment.

Where total independence cant be given, have supervisors offer recommendationsand be sure to seriously consider their recommendations.

Resist the temptation to second-guess, review or independently investigate the authorities exercised.

Have supervisors in question evaluate employees; rely upon those evaluations.

Keep records and document the exercise of supervisory functions.

Treat supervisors in question as members of management in more than name only. For example, provide appropriate compensation for supervisory authority, include them in appropriate planning and decision-making functions, make sure they attend management meetings and that you refer to them as managers in official correspondence.

Conclusion

Charge nurses and similarly situated front-line supervisors in other industries play an important role in providing effective management. Subjecting them to unionization makes them potentially less effective in discharging that role and forces them to deal with mixed loyalties and peer pressure.

Employers must be proactive when it comes to establishing supervisory status. They should not wait until they are involved in litigation or a union representation case.

Remember: The Supreme Court has left the door open for the NLRB to determine the extent to which independent judgment is exercised and to further define responsible direction. We can expect that the NLRB will continue to closely scrutinize charge nurses and comparable professional and technical supervisors, and continue to deny supervisory status whenever possible.

John E. Lyncheski is the senior director in the Labor & Employment Group at Cohen & Grigsby P.C. a national law firm based in Pittsburgh. He is a frequent speaker on labor and employment issues and has authored more than 100 articles on labor and employment law topics. Ronald J. Andrykovitch is a director in both the Healthcare Practice and Labor & Employment Groups of Cohen & Grigsby. He has authored a number of articles and has spoken on issues arising under the NLRA.